Most of the discussion in the ALSC forum <http://www.atlargestudy.org/forum.shtml> has
concerned the method of selecting members of the ICANN Board of Directors. I believe,
however, that the "role and functions" of the at-large membership, as contemplated in the
charter
of the ALSC, should not be limited to participation in selecting the ICANN Board.

1. Most ICANN decision-making authority is delegated.

In its "Discussion Paper #1" <http://www.atlargestudy.org/DiscussionDraftRev.5.4.htm>, the
ALSC says, "Regardless of how individual involvement is ultimately achieved, it is
reasonable to
expect that ICANN's Board will continue to be the focal point for critical decisions."

I strongly disagree.

While the ALSC should, of course, address the issue of at-large participation in the
selection of
the ICANN Board of Directors, I urge you also to address the critical need for at-large
participation in decision-making at other levels, particularly at the generic top level
domain
(gTLD) level.

Internet decision-making has, historically, been highly decentralized, with most
decisions being
made by relatively small groups of people concerned with particular specialized subtopics.
Different procedures have been appropriate in different areas, and different decisions on
the same
issues have been made by subgroups concerned with different topics or geographic
regions.

As the Internet and ICANN's responsibilities continue to grow, the proportion of
significant
decisions which it is possible for the ICANN Board to make themselves, or to exercise
meaningful
oversight of, will continue to decrease. Most ICANN decision-making
authority is already
delegated. Much of the dissatisfaction with the lack of opportunity for at-large input
into ICANN
decision-making has, in fact, related to decisions made by entities with delegated
authority -- such
as gTLD registry operators and registrars -- and not to decisions made
directly by the ICANN
Board.

Neither the ALSC nor ICANN need to adopt a "grand unified solution" to the problem of
at-large
participation in decision-making, solely through the selection of ICANN Board members.
Even
direct at-large election of the entire ICANN Board would be unlikely to provide sufficient
opportunity for at-large input into, and oversight of, the many decisions made by entities to
which authority is delegated by ICANN.

The experience of governments suggests that public participation in the selection of central
decision-making bodies becomes less and less sufficient for real democracy as the size of the
polity grows. Public interest and participation is actually much greater, in many cases, in the
regional, local, and special-purpose political entities where larger numbers of decisions are made -- often with more immediately perceptible effects -- than in higher-level bodies.

The Internet is no different. It is already a practical impossibility for the ICANN Board to review
each decision by a gTLD registry operator or other technical or topical working body, or for the
inherently limited number of ICANN Board meetings to provide an adequate opportunity
for
public input into those decisions. Particularly as the number of gTLD's
increases -- as it will -- at-large participation in decisions at the gTLD and other delegated levels, such as
through
participation in GTLD registry operator decision-making, will become increasingly
essential for
meaningful at-large participation in the governance of the domain name system.

Thus it is crucial to recognize that:

In accrediting a gTLD registry operator or sponsor the ICANN Board is, in fact, delegating
decision-making power over most matters concerning that gTLD; and

Meaningful opportunity for at-large participation in decision-making, oversight of
decisions
related to the gTLD, and eligibility for registrations of domain names cannot be assured
unless the
delegation of decision-making power to a gTLD registry operator or sponsor is
conditioned on a
requirement that appropriate means be provided for at-large participation in those
decisions.

If ICANN can't, in and of itself, provide adequate opportunity for at-large
participation in
Internet governance, then its most important role in the promotion of such participation
is to
require that it be provided, in some fashion, by those to whom ICANN delegates
authority.

2. Transparency is a prerequisite to meaningful at-large participation.

According to the ALSC Discussion Draft, "Thus far, our view is that a successful
structure and
process should ... Ensure that ICANN operates in a manner that is ... transparent."
Presumably,
the relevance of transparency to at-large participation is that without transparency an
ostensible
entitlement to participate in decision-making may be a sham.

Transparency, like the opportunity for participation, is most important at delegated
levels of
decision making, and should be addressed at those levels. But the experience of
governments
with transparency-in-government requirements -- referred to in the USA as "freedom of
information" and "sunshine" laws -- suggests that a common set of transparency standards
can be
enacted and applied to diverse entities to which authority is delegated.

In the USA, for example, the same statutory standards have successfully been applied to
entities
ranging in scale from neighborhood boards to the state government of California, and from
general-purpose decision-making entities such as the state legislature to specialized
entities with
authority over waste disposal, education, land use planning, and so forth.

So it should be possible for the ALSC and ICANN to develop and adopt standards for
transparency in decision-making the can be applied both to ICANN itself and to those to
whom it
delegates decision-making authority with respect to specific gTLD's or technical
areas.

(Aside from transparency-in-government legislation, other mechanisms that have been
useful in
governmental contexts as supplements to elections have included provisions for recall of
elected
officials, at-large referenda on measures enacted by representative bodies, and direct
at-large
enactment of legislation by initiative. All of these may warrant consideration by the
ALSC, in
addition to its apparent focus to date on the method of selecting the ICANN Board.)

3. The example of SITA and the ".aero" gTLD

My particular concerns over the potential for abuse of delegated decision-making
authority,
especially by corporations operating registries for gTLD's, and the importance of
transparency in
decision-making at delegated levels, are exemplified by the ".aero" gTLD, with respect to
which
ICANN is negotiating an agreement with SITA as the sponsor of ".aero".

In the proposal, "the definition of ATC is: 'All companies and organizations for which
the main
activity is related to Air Transport.' The ATC includes airlines, aerospace companies,
airport
authorities and governmental organizations."

This list is fine, so far as it goes. But the ATC as defined in the ".aero" proposal -- "All
companies and organizations for which the main activity is related to Air
Transport" -- also
includes a wide variety of non-governmental, non-corporate entities at many levels.

Among these members of the Air Transport Community, whose main activity is related to
air
transport, are:

air travellers and air travellers' organizations such as the International Airline
Passengers
Association <http//www.iapa.com>

air transport workers, trade unions, and workers' organizations of all types

air transport consumer advocates (such as myself) and consumer advocacy organizations
such
as the Airline Consumer Action Project <http://www.acap1971.org>

organizations and individuals (affected homeowners, neighborhood organizations, etc.)
impacted by the air transport industry through airport noise and other environmental
damage

at-large air transport freelancers, consultants, and other interested and affected
parties

All of these were included in SITA's definition of "the Air Transport Community" and
the ".aero"
constituency. But since SITA's proposal was accepted by the ICANN Board in November 2000,
none of these constituencies have been included in the process of deciding on eligibility
criteria for
".aero" registration.

ICANN reported to the USA Dept. of Commerce in July 2001, "Agreements still remain to
be
signed for ... .aero. ...Contract negotiations are continuing ..., and are expected to be
completed
later this summer [2001]." <http://www.icann.org/general/statusreport-03jul01.htm>

But with contract negotiations expected to be completed within weeks, no information
whatsoever has been provided to at-large members of the Air Transport Community, or to
non-corporate, non-governmental members of the ".aero" constituency, as to what criteria for
registration of ".aero" domain names are being contemplated.

SITA itself has shifted to describing ".aero" as "the Internet top level domain (TLD)
name ... for
the air transport industry" <http://www.sita.int/aero/info/index.asp>. And the most recent
(February 2001) public SITA statement of intent as to "Who can register .Aero domains?"
<http://www.ec-pop.org/20010111/aero/sld023.htm > lists only corporate and governmental
entities. (It's also testimony to the lack of transparency on SITA and ICANN's part that, despite
being virtually their only public comment on ".aero" since November 2000, this Web page is
linked from neither the SITA nor the ICANN Web sites.)

But a community and an industry are not the same thing. And an industry -- a sphere of
economic activity -- includes users as well as providers of services, workers as well as
corporations, consumer advocates as well as corporate lobbyists.

The apparent conflation of "community" with "industry", and the further collapse of "industry" to
"corporations and governmental entities" -- to the exclusion of workers, consumers, airports'
neighbors, etc. -- is a natural consequence of the lack of at-large participation in the SITA
decision-making process, and testimony to the need for a mandate for at-large participation in the
delegation of authority over a gTLD (or a specialized area) by ICANN.

When I e-mailed SITA as to what -- if any -- representatives of members of the Air
Transport Community other than corporations or governmental entities were participating in the
formulation of ".aero" policy, and what criteria were being considered for ".aero" registrations by
at-large and
other non-corporation, non-governmental entities, I was told only that "the exact
definition of the
individuals or entities qualifying for registration and related policies are currently
being developed
in close co-operation with representatives from various industry bodies.... We shall
communicate
the service availability as well as the details of registration policies and procedures in
due time and
we shall inform you directly once the launch date for the Registry Operation and
Registration
Services has been confirmed." <http://hasbrouck.org/icann/sita.html> In other words, no
information about the decisions will be provided to at-large stakeholders until after the
decisions
affecting their interests have been finalized without their participation.

SITA's lack of transparency and exclusion of at-large interests in the establishment of
".aero" are
significant not just for themselves but because, as SITA itself correctly states, "This is
the first
time any specific industry grouping would be allowed to adopt its own TLD." There are
likely to
be many more gTLD's for specific economic sectors, and the ".aero" application warrants
particular care because it is setting precedents.

Whether the ICANN Board accepts SITA's redefinition of "community" to "industry" to
"corporations and governmental entities", and SITA's exclusion of at-large stakeholders
within
the Air Transport Community from the formulation of criteria for eligibility to register
domain
names in ".aero", will be the test case of how ICANN will deal with the balancing of
corporate
and at-large interests in the establishment of new domains for specific economic sectors
that are
already largely dominated by corporate interests.

4. Recommendations

In light of the analysis above, I urge the ALSC to recommend (in addition to its
recommendations
with respect to at-large participation in selection of the ICANN Board of Directors):

That all gTLD registry operators, gTLD sponsors, and other entities to which
decision-making
authority is delegated by the ICANN Board be required, as a condition of that delegation
of
authority, to provide mechanisms for:

transparency, advance notice, and comment on proposed decisions; and

at-large participation and input to their decision-making process.

That the ICANN Board establish (or delegate to an appropriately constituted At-Large
Compliance Board to establish) procedures for oversight of compliance with these
requirement by
gTLD registry operators, gTLD sponsors, and other delegated entities, with penalties for
non-
compliance including but not limited to revocation of the delegation of authority.

That no further agreements with gTLD registry operators or sponsors be finalized by ICANN until
these
requirements for transparency, at-large participation, and oversight are included in
them.

Please consider this as an addition to your Options A, B, and C for ALSC
recommendations.